United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
P. MAZZONE UNITED STATES MAGISTRATE JUDGE.
February 4, 2019, SHAKEEM HERATIO CRAWFORD
(“Petitioner”), proceeding pro se, filed
a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody. (Civil
Action No. 3:19CV13, ECF No. 1; Criminal Action No. 3:06CR69,
ECF No. 308). The undersigned now issues this Report and
Recommendation on the Petitioner's motion without
requiring the Government to respond and without holding an
evidentiary hearing. For the reasons stated below, the
undersigned recommends that the District Judge deny and
dismiss the Petitioner's motion.
was adjudged guilty of conspiracy to distribute
“crack” cocaine in violation of 21 U.S.C. 847,
distribution of “crack” cocaine in violation of
18 U.S.C. 841(a)(1), possession with intent to distribute
“crack” cocaine in violation of 18 U.S.C.
841(a)(1), and aiding and abetting possession with intent to
distribute “crack” cocaine in violation of 18
U.S.C. 841(a)(1), and 18 U.S.C. 2. On December 11, 2007, the
Petitioner was sentenced to a term of 360 months imprisonment
on each of the four counts to run concurrently followed by 10
years of supervised release for one count and 6 years of
supervised release for each of the other counts to run
concurrently. Judgment, ECF No. 196. According to the
Pre-Sentence Report (“PSR”), Petitioner was a
career offender within meaning of U.S.S.G. § 4B1.1 of
the guidelines for the following reasons (1) Petitioner was
18 years or older at the time of the commission of the
instant offense; (2) the instant offense was a felony
involving a controlled substance; and (3) Petitioner had at
least two prior felony convictions of either a crime of
violence or a controlled substance offense. PSR at 5, ECF No.
Petitioner did file an appeal of his conviction or sentence,
which conviction was affirmed by the Fourth Circuit Court of
Appeals on September 5, 2008. ECF No. 212.
August 26, 2009, the Petitioner filed his first Motion to
Vacate pursuant to 28 U.S.C. § 2255. ECF No. 232. On
January 27, 2011, United States Magistrate Judge John S.
Kaull entered a Report and Recommendation in which he
recommended that the Petitioner's § 2255 Motion be
denied and dismissed on the merits. R&R, ECF No. 253. On
February 22, 2011, the Court adopted the Report and
Recommendation, and denied and dismissed the Motion to Vacate
with prejudice. ECF No. 255.
second Motion to Vacate Under 28 U.S.C. § 2255, (Civil
Action No. 3:16cv60) the Petitioner alleged that pursuant to
the decision in Johnson v. United
States, his career offender status was no longer
valid under the residual clause. On May 12, 2016, a Report
and Recommendation was entered which recommended that this
second § 2255 Motion be denied and dismissed as second
or successive. ECF No. 313. On June 7, 2017, the Report and
Recommendation was adopted, and the Petitioner's second
§2255 Motion was denied and dismissed with prejudice.
ECF No. 321.
third § 2255 Motion, the Petitioner alleges that under
“Simmons, ” he is no longer a career offender.
For relief, he seeks to be resentenced. For the reasons set
forth below, the Petitioner's current § 2255 Motion
is due to be dismissed.
a second or successive federal habeas corpus motion, 28
U.S.C. § 2255(h) states:
second or successive motion must be certified as provided in
section 2244 by a panel of the appropriate court of appeals
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was